Citation: Bushter v R (Commonwealth) [2017] NSWDC 87
Court: District Court of New South Wales
Date: 15 March 2017
Judge(s): Colefax SC DCJ
Background
The appellant was convicted in the Local Court of four offences: two counts of people smuggling under s 233A of the Migration Act 1958 (Cth) and two counts of passport-related offences under s 37(1) of the Australian Passport Act 2005 (Cth). The offences arose from his attempt to smuggle his second (overseas) wife and her child into Australia using the passports of his first wife and one of his children, taken from Australia without authorisation. The scheme was uncovered overseas and the intended entrants never reached Australia.
The Local Court imposed concurrent sentences totalling two years imprisonment for the people smuggling offences, with release after twelve months. The passport offences each attracted six months imprisonment, served concurrently with the principal sentence. The appellant appealed to the District Court on the ground that the sentences were excessive.
The only ground pressed on appeal was that the sentences caused exceptional hardship to a third party, specifically the appellant's former first wife, who remained living with him and who was said to suffer from severe mental illness.
Legal Issues
- Whether the appellant established "exceptional hardship" to a third party (his former wife) sufficient to warrant a reduction in the sentences imposed by the Local Court.
Decision
The District Court dismissed the appeal, finding that the appellant had not proved exceptional circumstances as required by law. Colefax SC DCJ noted that the appellant's own evidence undermined his hardship argument: he had previously left his mentally ill first wife in the care of their children when those children were aged only six to eleven years. Those same children were now aged thirteen, fifteen and eighteen, meaning their capacity to provide care had materially improved, not diminished.
The Court also noted certain factual inconsistencies in the appellant's account. The appellant had claimed to be unemployed and living on a Carer's Pension for six years, yet evidence suggested he was regularly sending money to Iran and funding multiple return flights between Australia and Iran during that period. While these matters were not counted against the appellant for the purposes of the appeal, they informed the Court's overall assessment of his credibility.
Colefax SC DCJ further observed that the Local Court sentences were already lenient and consistent with applicable precedent. The judge noted that the appellant had been fortunate to be prosecuted in the Local Court, where the maximum penalty is two years imprisonment, rather than in the District Court, where the maximum for each offence is ten years. The total concurrency of the sentences across all four charges was also identified as favourable to the appellant.
Orders Made
- The orders of the Local Court are confirmed.
- The offender was remanded into custody.
Key Takeaways
- The District Court confirmed that an appellant bears the onus of proving "exceptional hardship" to a third party when relying on that ground to challenge a sentence on severity appeal, and that the threshold is a demanding one.
- A hardship argument may be undermined by the appellant's own evidence: where the appellant had previously left the same third party in the care of younger children, a court may find that older children provide at least equivalent, if not improved, care.
- In dismissing the appeal, the Court signalled that total concurrency across multiple serious offences, including for conduct targeting two separate individuals, represented a generous approach by the sentencing Magistrate.
- The jurisdictional context of prosecution matters in people smuggling and passport fraud cases: the maximum penalty in the Local Court is two years imprisonment per offence, compared to ten years per offence in the District Court.
- No error in the Local Court's exercise of sentencing discretion was established, and the sentences were described as entirely consistent with precedent.
Legislation and Cases Referenced
Legislation:
- Migration Act 1958 (Cth), s 233A (people smuggling)
- Australian Passport Act 2005 (Cth), s 37(1) (passport offences)
Cases cited: No cases were cited in the judgment.